Bombay High Court
Tukaram Hanumantrao Chavan Since ... vs Shankar Rameshwar Chavan And Ors on 13 December, 2023
Author: S.G. Mehare
Bench: S.G. Mehare
2023:BHC-AUG:27127 12-cra-18-2023
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 18 OF 2023
1. Tukaram Hanumantrao Chavan,
Since deceased Through LR.s,
1.1 Geeta Vilasrao Sable,
Age 39 years, Occu. Household,
R/o Devmurti, Tal. & Dist. Jalna.
1.2 Shivkumar Vinayak Chavan,
Age 38 years, Occu. Agriculture,
R/o As above.
1.3 Parvatabai Vinayak Chavan,
Age 65 years, Occu. Agriculture,
R/o As above.
1.4 Santosh Karbhari Chavan,
Age 39 years, Occu. Agriculture,
R/o As above.
2. Kundlik Sakharam Chavan,
Age 70 years, Occu. Agriculture,
R/o As above.
3. Mrs. Prayagabai Kundlik Chavan,
Age 60 years, Occu. Agriculture,
R/o As above. ... Petitioners/Applicants
Versus
1. Shankar s/o Rameshwar Chavan,
Age 36 years, Occu. Agriculture and Labour Work,
R/o Devmurti, Tal. And District. Jalna.
2. Narayan Bhagwanrao Chavan,
Age 59 years,
R/o Devmurti, Tal. And District. Jalna.
Through his Power of Attorney Holder,
Krishna Narayan Chavan,
Age 24 years, Occu. Agriculture and Business,
R/o Devmurti, Tal. And District. Jalna.
3. Mirabai Vitthalrao Chavan,
Age 60 years, Occu. Agriculture,
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(2)
R/o As above.
4. Rameshwar Asaram Chavan,
Age 62 years, Occu. Agriculture,
R/o As above.
5. Yaman Asaram Chavan,
Age 65 years, Occu. Agriculture,
R/o As above.
6. Vitthal Tukaram Chavan,
Age 66 years, Occu. Agriculture,
R/o Devmurti, Tal. And District. Jalna.
7. Rushikumar Rangnath Chavan,
Age 38 years, Occu. Agriculture,
R/o Devmurti, Tal. And District. Jalna.
8. Baliram Rangnath Chavan,
Age 35 years, Occu. Agriculture,
R/o As above.
9. Ankush Vinayak Chavan,
Age 35 years, Occu. Agriculture,
R/o As above.
10. Malmatabai Vinayak Chavan,
Age 40 years, Occu. Agriculture,
R/o As above.
11. Vijay Karbhari Chavan,
Age 43 years, Occu. Agriculture,
R/o As above.
12. Vimalbai Karbhari Chavan,
Age 62 years, Occu. Agriculture,
R/o As above.
13. Madhuri Deepak Chavan,
Age 31 years, Occu. Agriculture,
R/o Devmurti, Tal. And District. Jalna.
14. Vedika Deepak Chavan,
Age 10 years, Occu. Education,
R/o As above.
15. Abhimanyu Deepak Chavan,
Age 5 years, Occu. Education,
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(3)
R/o As above.
Applicants No.14 and 15 through
their Natural Guardian i.e. Mother
Madhuri Deepak Chavan,
Age 30 years, Occu. Agriculture,
R/o As above. ... Respondents.
WITH
CIVIL REVISION APPLICATION NO. 24 OF 2023
1. Tukaram Hanumantrao Chavan,
Since deceased Through LR.s,
1.1 Vitthal Tukaram Chavan,
Age 66 years, Occu. Agriculture,
R/o Devmurti, Tal. And District. Jalna.
1.2 Rushikumar Rangnath Chavan,
Age 38 years, Occu. Agriculture,
R/o Devmurti, Tal. And District. Jalna.
1.3 Baliram Rangnath Chavan,
Age 35 years, Occu. Agriculture,
R/o As above.
1.4 Ankush Vinayak Chavan,
Age 35 years, Occu. Agriculture,
R/o As above.
1.5 Vijay Karbhari Chavan,
Age 43 years, Occu. Agriculture,
R/o As above.
1.6 Vimalbai Karbhari Chavan,
Age 62 years, Occu. Agriculture,
R/o As above.
1.7 Madhuri Deepak Chavan,
Age 31 years, Occu. Agriculture,
R/o Devmurti, Tal. And District. Jalna.
1.8 Vedika Deepak Chavan,
Age 10 years, Occu. Education,
R/o As above.
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(4)
1.9 Abhimanyu Deepak Chavan,
Age 5 years, Occu. Education,
R/o As above.
Applicants No.1.8 and 1.9 through
their Natural Guardian i.e. Mother
Madhuri Deepak Chavan,
Age 25 years, Occu. Agriculture,
R/o As above.
2. Mirabai Vitthalrao Chavan,
Age 55 years, Occu. Agriculture,
R/o As above. ...Petitioners/Applicants.
Versus
1. Shankar s/o Rameshwar Chavan,
Age 36 years, Occu. Agriculture and Labour Work,
R/o Devmurti, Tal. And District. Jalna.
2. Narayan Bhagwanrao Chavan,
Age 59 years, Occu. Agriculture and Labour Work,
R/o Devmurti, Tal. And District. Jalna.
Through his Power of Attorney Holder,
Krishna Narayan Chavan,
Age 24 years, Occu. Agriculture and Business,
R/o Devmurti, Tal. And District. Jalna.
3. Rameshwar Asaram Chavan,
Age 67 years, Occu. Agriculture,
R/o As above.
4. Yaman Asaram Chavan,
Age 65 years, Occu. Agriculture,
R/o As above.
5. Kundlik Sakharam Chavan,
Age 72 years, Occu. Agriculture,
R/o As above.
6. Mrs. Prayagabai Kundlik Chavan,
Age 73 years, Occu. Agriculture,
R/o As above.
7. Geeta Vilasrao Sable,
Age 39 years, Occu. Household,
R/o As above.
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(5)
8. Shivkumar Vinayak Chavan,
Age 38 years, Occu. Agriculture,
R/o As above.
9. Parvatabai Vinayak Chavan,
Age 65 years, Occu. Agriculture,
R/o As above.
10. Malmatabai Vinayak Chavan,
Age 55 years, Occu. Agriculture,
R/o As above.
11. Santosh Karbhari Chavan,
Age 39 years, Occu. Agriculture,
R/o As above. ... Respondents.
...
Advocate for Petitioners & Respondent Nos.5 to 9 & 11 in
C.R.A./24/2023 : Mr. A.P. Bhandari
Advocate for Respondent Nos.1 & 2 : Mr. Sagar S. Ghate
Advocate for Respondent Nos.3, 6 to 9, 11 to 15 & Petitioners in
C.R.A./24/2023 : Mr. A.P. Nahar
Advocate for Respondent No.10 in C.R.A./24/2023 : Mr. R.N. Bhapkar
...
CORAM : S.G. MEHARE, J.
DATED : DECEMBER 13, 2023
ORAL JUDGMENT :-
1. Heard learned counsel for the petitioners and learned counsel for
the respondents.
2. The defendants Nos.1.2,1.3, 5 and 6 had two separate applications
under Order VII Rule 11 (a) (b) (c) and (d) of the Civil Procedure Code
(C.P.C. for short). Both applications were decided by a common order.
3. Respondents nos.1 Shankar and 2 Tukaram were the plaintiffs.
They had filed a suit for declaration, possession, and injunction.
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4. The declaration was sought that the sale deeds dated 24.05.1968
executed by Bhagwan, the father of Respondent No.3 in favour of
deceased Tukaram and a sale deed dated 21.02.1972 executed by
Rameshwar and Yaman in favour of Tukaram be declared not binding
upon them and for the possession of the said lands gut nos.146 and 165.
In sum and substance, the plaintiffs claimed that on 17.01.1968 there was
a partition between Bhagwan, Rameshwar, and Yaman. They got 1/3rd
share. However, the entries were not taken in the 7/12 extract. Taking
advantage of this situation, the father of plaintiff no.3 sold some portion
of land out of gut no.146 to defendant no.1 - Tukaram on 24.05.1968.
Similarly, defendants nos.3 and 4 also sold gut numbers to Tukaram. The
plaintiffs have the right to inherit and share in both suit lands. On
20.07.2022, the plaintiffs applied to the office of Tahsildar for copies of
mutations. However, the record was torn, and they did not get the copies.
5. It has been alleged that while converting the survey numbers into
gut numbers under the consolidation scheme, the false entries were
taken on the basis of the forged documents. At the time of the partition,
defendant nos.3 and 4 were minors. Their mother was their guardian. It
has been alleged that since there were no entries in the revenue record,
defendants, in collusion with each other, recorded their names in the
revenue record without their knowledge. Hence, the sale transactions
were not binding upon them. Both sale deeds were executed behind their
back and without their consent. Due to the drought, the plaintiff and his
family left the village for labour work. Their lands were remained
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uncultivated. Again, it has been alleged that the defendants got the bogus
entries recorded in the revenue record in their names, and on the basis
of those entries, they have illegally encroached upon the suit lands. After
returning to the village, the plaintiffs asked the defendants to remove
their illegal possession, but they did not vacate. In para 9, the cause of
action is shown as 10.07.2022, when the defendants refused to vacate the
premises.
6. Learned counsel for the petitioners would submit that the
plaint averments are ambiguous as regards the cause of action. When the
sale deed was executed in 1968, plaintiff no.1 had not even been born.
Perhaps he might not have conceived. The complete plaint does not
disclose the cause of action, but the cause of action was concocted for
bringing the suit within limitation. The defendants have purchased the
suit land by registered document. Hence, applying the doctrine of notice
as provided under Section 3 of the Transfer of Property Act, it is assumed
that the plaintiffs had knowledge of the sale transactions. The suit was
barred by limitation, and there was no cause of action. To bolster his
arguments, he relied on the case laws. Those will be considered in the
later part of the order. He also argued that Section 3 of the Limitation
Act imposes the duty upon the Court to examine the limitation. For that
purpose, pleading or objection of either party is not essential. He would
also argue that the Court of First Instance did not consider these material
aspects and erroneously rejected the application under Order VII Rule 11
of the Civil Procedure Code. He prayed to allow the revision applications.
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7. Learned counsel for the plaintiffs submits that the suit
would be governed under Article 56 of the Limitation Act. When the
plaintiffs learned about the registration, the suit was filed within three
years. The cause of action was specifically pleaded. Therefore, the suit
was not barred by limitation. So far as the cause of action is concerned,
the plaintiffs were the legal heirs of predecessors in title, giving them a
right to share, as the property was ancestral. He would also argue that
even if it is held that the suit is bad for limitation, the rights of defendants
nos.3 and 4 have been protected. He also argued that various complex
issues have been involved in the case about the accrual of the right to file
a suit. The limitation is a mix question of law and facts. Therefore, the
learned Court of first instance has correctly held that the plaint cannot be
rejected at the earlier stage of the suit without the evidence on record. He
would submit that the case laws relied upon by the petitioners are not
applicable to the present case for the reason that those are on different
facts. He prayed to dismiss the revision applications.
8. While discussing the facts pleaded by the plaintiffs, the
Court has considered the pleadings. The applications under Order VII
Rule 11 of the Civil Procedure Code are to be decided on the basis of the
plaint averments only. It is a rule that the plaint shall be read as a whole
to find out whether there was a cause of action to file a suit, as it is a
bundle of facts. The accrual of the rights begins the period of limitation
to run as provided under the Limitation Act, and it can not be created at
the whims of the party to the suit. Article 56 of the Limitation Act speaks
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of the limitation to declare the forgery of an instrument issued or
registered. To declare the forgery of an instrument issued or registered
was not binding or illegal, the said declarations are sought regarding the
documents which were claimed to be forged. It was not a case of forgery.
The plaintiffs have claimed the cause of action arose when they got the
inheritance. Even if it is presumed that the plaintiffs were minors when
the sale deeds were executed, the suit for declaration of right was to be
filed within three years when the right to sue first accrued. A substance
appears in the arguments of the learned counsel for the petitioners that
when the sale transaction of 1968 was executed, plaintiff No.1 might not
have been born.
9. The question is whether the plaint under Order VII Rule 11
could be saved on the sole ground that the limitation is a mix question of
law and fact.
10. Learned counsel for the petitioners relied on the case of
Rajendra Bajoria and Others Vs. Hemant Kumar Jalan and Others in Civil
Appeal Nos.5819-5822 of 2021 (Arising out of S.L.P. (C) Nos.2779-2782
of 2019). In the said case, it has been observed that reading
of the averments made in the plaint should not only be formal,
But also be meaningful. It has been held that if clever drafting has
created the illusion of a cause of action and a meaningful
reading thereof would show that the pleadings are manifestly
vexatious and meritless, in the sense of not disclosing a clear
rights to sue, then the Court should exercise its power under
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Order VII Rule 11 of C.P.C. It has also been held that such a suit must be
nipped in the bud at the first hearing. These are the observations
extracted from the case of T. Arivandandam v. T.V. Satyapal and Another,
(1977) 4 SCC 467. It was observed in the said judgment that the powers
conferred on the Court to terminate a civil action is a drastic one, and the
conditions enumerated under Order VII Rule 11 of C.P.C. are required to
be strictly adhered to. However, under Order VII Rule 11 of C.P.C., the duty
is cast upon the Court to examine whether the plaint discloses a cause of
action by scrutinizing the averments in the plaint with the documents
relied upon, or whether the suit is barred by any law. The underlying
object of Order VII Rule 11 of C.P.C. is that when a plaint does not disclose
a cause of action, the Court will not permit the plaintiff to protract the
proceedings unnecessarily. In such a case, it will be necessary to put an
end to the sham litigation so that further judicial time is not wasted.
11. He further relied on the case of Raghwendra Sharan Singh
Vs. Ram Prasanna Singh of the Hon'ble Supreme Court in Civil Appeal
No.2960 of 2019. In this case, it was observed that the averments in the
plaint and the bundle of facts stated in the plaint should be considered to
decide whether the suit is barred by law of limitation or for want of cause
of action. In the case of Jayantilal Devji Shah Vs. Mangesh Dasrath Gaikar,
2018 (2) Mh.L.J. 709, the Bombay High Court held that it is well settled
that whilst adjudicating upon an application under Order VII Rule 11 of
the C.P.C. the plaint as a whole has to be meaningfully read and the Court
would have to see through clever drafting which creates an illusion of a
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cause of action. If the said test is applied the cause of action being pleaded
on account of loss of possession is merely with a view to bring the suit
within limitation. In the case of Nagichand s/o Devichand Buccha Vs. Vinod
s/o Tarachand and ors, 2018 (1) Mh.L.J. 433 relied upon by the petitioners'
counsel, it has been observed that the limitation for the said case would
be ascertained, as per Article 54 of the Limitation Act, either from the
date stipulated for the performance of the contract or where no such date
is stipulated, from the time when the performance is refused. The parties
have no suit for the specific performance of the contract. Hence, this case
would not assist the petitioners. In the case of Gaurav s/o Balmukund and
others Vs. Tukaram Pandurang Dhagekar (since dead) through his L.Rs.,
2018 (4) Mh.L.J. 709, the Bombay High Court held that only the plaint is
to be read and it has to be examined as to what is the cause of action
sought to be agitated by the plaintiff and on that basis, it has to be
ascertained as to when limitation period for agitating grievance in
respect of such cause of action has been triggered. Once it is held that the
suit filed by the plaintiff, on a plain reading of the plaint, is barred by
limitation, the Court is bound to exercise power under Order 7 Rule 11(d)
of the C.P.C. to reject the plaint.
12. The ratio laid down in the case of T. Arivandandam (cited
supra) has been reiterated repeatedly in various cases. The rule has been
set out that the application under Order VII Rule 11(d) of the C.P.C. should
be dealt with only by reading the plaint as a whole. However, if the Court
holds that the suit is barred by limitation or the plaint does not disclose
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the cause of action, the Court shall exercise the powers under Order VII
Rule 11 of the Civil Procedure Code.
13. As reproduced in the above paragraphs, the plaint averments
reveal that defendant no.1 was 34 years old when the suit was filed. He
has impugned the sale transaction of 1968. Considering these two dates,
there appears to be substance in the arguments of the learned counsel
for the petitioners that he might not have been born or even conceived.
The other plaint averments, particularly para 7, disclose that the
plaintiffs had knowledge about the so-called encroachment of the
contesting defendants in whose favour the sale deed was executed.
However, no specific date has been disclosed when they left the village
due to drought to find employment at another place and when they
returned home and, for the first time, learned about the so-called
encroachment by the defendants. It is also not pleaded how many times
and in which year they requested the defendants to vacate the suit land.
All of a sudden, they came up with a case, and in July 2022, they applied
for the documents with the Office of Tahsildar. Since they did not get the
certified copies, they have come up with a case that the defendants got
the mutations fraudulently. The last cause of action they have pleaded is
10.07.2022. On that date, again, the plaintiffs asked to vacate or remove
the encroachment and hand over the possession to them.
14. Reading the plaint as a whole, it is clear that the plaintiffs
themselves were not clear when the cause of action arose. They did not
deny the documents i.e. the sale deeds, which were registered in favour
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of the defendants. Therefore, they knew about the questioned sale deeds
as provided under Section 3 of the Transfer of Property Act. Though the
normal rule is that the limitation is a mix question of law and fact, the
plaint averments are not specific about the cause of action and limitation.
The sale deeds were executed by the predecessor in title of the plaintiffs.
The plaintiffs are claiming the share by way of succession or inheritance.
Therefore, the acts done by their predecessor in the title cannot be said
to be forgery. The executant of the sale deed never made any such
allegation against the contesting defendant no.1. The plaintiffs attained
the majority long back. The limitation begins to run from attaining the
majority and, at that time, the right to sue accrued for the first time. The
suit was not brought within three years after attaining the majority.
Reading the plaint, the Court is satisfied that there was no cause of action
to bring the suit, which was apparently barred by limitation.
15. The learned Court of first instance erred in not allowing the
application and preventing the unwanted suit. Hence, it is liable to be set
aside. Therefore, the following order :
ORDER
(i) Both revision applications are allowed.
(ii) The plaint is rejected.
(iii) The document, if any, filed by the plaintiffs be returned to them by
obtaining the provisions of law.
(iv) If the parties have the right to file the suit under any other law,
these observations will not affect those rights.
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(v) Needless to state, the parties' rights, if executable under any law,
would not be affected by this order.
(S.G. MEHARE, J.)
Mujaheed//
Signed by: Syed Mujaheed Naseer
Designation: PA To Honourable Judge
Date: 22/12/2023 15:31:54
